MARYLAND STATE BAR ASSOCIATION, INC. COMMITTEE ON ETHICS ETHICS DOCKET NO.

2016-07 As part of settling a lawsuit, does it violate the Maryland Rules of Professional Conduct for a defendant to propose to or for a plaintiff’s attorney to agree to never discuss or disclose the underlying facts of the lawsuit which are already a matter of public record? You asked the Committee to consider the following question under the Maryland Rules of Professional Conduct (“MRPC”): As part of settling a lawsuit, does it violate the Maryland Rules of Professional Conduct for a defendant to propose to or for a plaintiff’s attorney to agree to never discuss or disclose the underlying facts of the lawsuit which are already a matter of public record? We believe that such a request or an agreement would violate MRPC, Rule 5.6(b). Under Rule 5.6, “[a] lawyer shall not participate in offering or making: (b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.” Prior Committee Opinions In 1982, this Committee concluded that an attorney may not ask or agree, as a condition of settlement, that counsel “be prohibited from rendering future services to potential clients in pending litigation, parallel litigation, or future litigation.” Md.

Bar Ass’n Ethics Op. 82-53 (1982). Such conduct was considered to be in violation of DR 2-108(B) of the Maryland Code of Professional Responsibility, which provided that “[i]n connection with the settlement of the controversy or suit, a lawyer shall not enter into an agreement that restricts his right to practice law.” Id. Other jurisdictions have reached the same conclusion. See, e.g., Cal. State Bar Ass’n Formal Op. 1988-104 (applying California Code of Professional Conduct DR 2-109(A)).

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In 1998, this Committee concluded that MRPC Rule 5.6(b) did not prohibit an attorney from agreeing not to use or disclose a specific confidential memorandum that the attorney had obtained in litigation. Bar Ass’n Ethics Op. 1998-10 (1998). Our review in that case was tentative, given that the settlement agreement terms were open to legal interpretation. In a similar vein, however, other jurisdictions have repeatedly found that an attorney may agree to keep the non-public terms of a settlement agreement confidential. See, e.g., N.

Dakota State Bar Ass’n Ethics Op. 1997-05 (1997) (citing numerous similar opinions). It is worth noting that neither our 1998 opinion nor the request here require analysis of the full extent to which an attorney may agree not to use or disclose confidential information pertaining to a matter. There may be a significant difference between a request not to use or disclose particular confidential documents or disclose the confidential terms of a settlement versus a broad agreement that defines “confidential information” such that an attorney is effectively precluded from representing clients in future, similar cases. See, e.g., ABA Formal Op.

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